SHEO NATH PRASAD Vs. SARJOO NONIA

JUDGEMENT

(1.) I have had the advantage of reading the judgments of three of my colleagues. I agree with the finding of my brother Dar and my brother Mathur that it was open to the plaintiff-appellant at the trial of the suit to prove the alleged loan by such evidence, including the receipt, as may have been available to him ; and I am in general agreement with the reasoning of my brother Mathur as regards the appeal which is before us for decision. Where as here and as usually, the terms of the contract--by which I mean all its substantial terms--have not been embodied in the promissory note and where, as here, the promissory note is inadmissible in evidence by reason of Section 35, Stamp Act, it is open to the plaintiff to prove the terms of the contract. The defendant will of course be entitled to rebut the evidence so adduced and establish that there was in fact no loan; but if he fails to do so, the plaintiff will ordinarily succeed on the proved contract of loan.

(2.) In the case before us, I am satisfied that all the terms of the contract were not incorporated in the promissory note. In view of this finding, the other questions of law which have been agitated before us have become hypothetical. I do not therefore propose to decide them. It has now become apparent that in the Full Bench case of Nazir Khan V/s. Bam Mohan it was alleged and apparently accepted that the entire terms of the contract were embodied in the promissory note. Here in my opinion, they are not; and, in my experience, they seldom are so embodied in a ease where a promissory note is executed against a simple advance of money. If the Pull Bench decision was intended to apply to such a case, I am in disagreement with it. Since all the terms of the contract were not embodied in the promissory note in suit, it follows that the bar of Section 91, Evidence Act, does not apply. Any findings by me in respect to a state of facts other than those here existing would therefore be obiter and irrelevant. As regards merits, I agree, for the reasons given by my brother Dar and my brother Mathur, that the appeal should be dismissed. Bajpai, J.

(3.) The facts of this case and the law relevant to those facts have been discussed at length by ray colleagues, Dar and Mathur JJ. I agree with them and my brother Collister that the bar of Section 91, Evidence Act, does not apply. The merits, however, are against the appellant and he has failed to prove by independent evidence that the loan was advanced to the respondent. I would, therefore, dismiss the appeal. Hamilton, J.